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With a 60-year heritage, Gallivan, White, & Boyd, P.A. is one of the Southeast’s leading litigation and business law firms. GWB's products liability team has extensive experience in defending a wide variety of products liability claims, including mass tort and catastrophic loss claims, as well as conducting accident investigations and providing strategic advocacy services to our clients. Gallivan, White & Boyd, P.A. has offices in Greenville, S.C., Charleston, S.C., Columbia, S.C., and Charlotte, N.C.

If you follow Anne Coulter’s reasoning, we assume you aren’t caught up in the World Cup craziness. As such, you are left to focus on America’s pastime, baseball, in order to get your sports fix for the summer. Baseball is a fine sport, to be sure, but things often get a little boring at this point in the season. Thankfully, the Missouri Supreme Court has finally issued its opinion in the now infamous flying hotdog case, Coomer v. Kansas City Royals Baseball Corp., No. SC93214 (Mo. June 24, 2014), to spice up the mid-season doldrums. Of course, we had to review and comment upon this important piece of jurisprudence.

For those new to the case, the facts are these: Coomer is an avid baseball fan who had been to approximately 175 Kansas City Royals games. In September 2009, during game number 176, Coomer was hit in the face by a hotdog thrown by the Royals mascot, Sluggerrr. The impact of the flying dog allegedly caused Coomer to sustain a detached retina. Thereafter, as you might expect if you regularly read this blog, Coomer sued the Royals. The case proceeded to trial, and the jury charged as to whether the risk of being hit by a hot dog was inherent in attending a Royals game. After receiving this charge, the jury returned a defense verdict, allocating 100 percent of the fault to Coomer himself. In a lengthy opinion, the Missouri Supreme Court vacated the jury’s decision and remanded the case. At issue in the case was the so-called “Baseball Rule” which essentially protects teams from risks that are inherent to the game, i.e. foul balls entering the stands. According to the Court, the members of which have apparently never heard “Take Me Out to the Ballgame,” the risk of being injured by Sluggerrr’s hot dog toss is not one of the inherent risks of watching a Royals home game. Because assumption of risk is a question of law, the Court held that it was an error to charge the jury on the issue and that such a charge was prejudicial.

Admittedly, when we here at Abnormal Use first heard about this case, we were skeptical. It is not uncommon to see vendors tossing food to fans at a baseball game. (Note: Sluggerr’s official website indicates that he throws hot dogs.). Plus, the thought of a flying hot dog injury sounds absurd on its face. Nonetheless, we must actually agree with the Missouri Supreme Court in this instance. As crazy as a flying hot dog might sound, we don’t believe it is necessarily a risk inherent to the game of baseball nor do we believe it is within the intended scope of the “Baseball Rule.” Unlike a foul ball, this type of harm could more easily be avoided albeit to the dismay of food tossing mascots everywhere.

If this case is tried again, the jury could always return the same result if it finds Coomer was negligent in some manner by not preparing himself to catch the dog (who knows?). The real impact of this decision may not be felt by Coomer but by sports teams nationwide. Certainly, teams will have to think twice before allowing mascots to distribute items to fans by hand toss or t-shirt gun. Which begs the question, what else do mascots actually do?

A familiar story to anyone who has ever visited a Texas-style honky tonk. The synthesis of alcohol and a simulated rodeo is difficult for anyone to resist. Unfortunately, the combination can also lead to embarassing falls and, in some cases, injury.

Sounds like the makings of a good lawsuit, right?

In Thom v. Tonk, No. 03-11-00700-CV (Tex. App – Austin, Aug. 30, 2012), a Texas man filed suit against Rebel’s Honky Tonk after injuring his back after falling from the bar’s mechanical bull. The man signed a release before riding the bull but failed to disclose his chronic back condition to the operator. Nevertheless, the man rode the bull, found himself thrown from it, and fractured two vertebrae in his back.

The trial court granted the bar’s motion for summary judgment on the basis of release and assumption of risk. On appeal, the man argued that the release was inconspicuous and that actual knowledge could not replace the requirement that the release be conspicous. However, the Austin Court of Appeals found that the release’s title, “PARTICIPANT AGREEMENT, RELEASE AND ASSUMPTION OF RISK,” left little doubt as to the document’s purpose. Furthermore, the man testified at his deposition that he understood that the release was a waiver in the event he was injured. So there goes that argument.

Notwithstanding his signature on the release, the man also argued that because he did not read the document, he could not have known the risks involved in riding the bull. But then again, the man did testify that before mounting the bull, he did not witness anyone ride without falling. And, of course, this is Texas, so undoubtedly the man has witnessed a rodeo a time or two. In any event, the court was unpersuaded, holding that one is presumed to a know the contents of a contract that one signs.

A difficult sale it is to contend that one did not appreciate the risks of riding a mechanical bull. Unlike the rodeo, the purpose of the mechanical bull is more than an 8-second ride. The end-game is the fall. Never has a mechanical bull operator thrown his hands up after a customer’s short stint on the bull saying, “Ok, Ty Murray. I give up. You are too good.” You get on the mechanical bull to get tossed and to provide a good laugh for the crowd.

Injuries are obviously no laughing matter. But, in this case, mechanical bull suits belong in the courtroom like a bull belongs in a china shop.

Every spring, our firm scrounges together a group of attorneys and staff members to play in a local Co-Ed Law Softball League. Despite our stationary profession, some of us have maintained the athletic prowess of our youth and resemble actual softball players. Others (including me), simply try our best to finish each game without suffering serious injury. The games are meant to develop camaraderie both within the firm and the local bar. However, when you bring a group of lawyers together, you should expect a certain level of competitiveness. Diving catches. Head-first slides. Home plate collisions. Whatever it takes to win. But what happens when a “winning play” results in injury to your competitor? With this many lawyers on the field, certainly someone can develop some theory of liability. But will it be successful in a court of law? Recently, our very own South Carolina Supreme Court handed us down some guidance on the issue.

In Cole v. Boy Scouts of America, No. 27072 (S.C. Dec. 5, 2011), the Court addressed a challenging recreational softball game. The plaintiff and his son participated in a pick-up softball game during a Boy Scout camping trip. Despite the fact that the score was not being kept officially, some of the fathers were playing “aggressively” and hitting the ball with “full swings.” Gasp. During one such play, the defendant, attempting to score from second base, collided with the plaintiff, who was blocking home plate. As a result of the collision, the plaintiff suffered a closed head injury and spent two days in the intensive care unit. Thereafter, the plaintiff and his wife, personally and as guardian ad litem for their son, sued the Boy Scouts of America, the local Pack, and the defendant for personal injury, loss of consortium, and negligent infliction of emotional distress. The defendant moved for summary judgment on the grounds that he owed no duty to the plaintiff because the plaintiff assumed the risks incident to the sport of softball. The circuit court agreed, and the Supreme Court affirmed the decision.

On appeal, the plaintiff argued that the defendant’s behavior was inconsistent with the ordinary risks of softball because the game was intended to be noncompetitive. While we wish the Court would have used the opportunity to discuss the interrelatedness of sport and competitiveness and the horrors of non-score keeping, the Court opted for a more tactful approach. The Court indicated that a risk inherent in sport can be found at any level of play possibly more so in a non-professional arena where the players are less skilled and athletic. Whether or not the plaintiff was keeping score, he was still playing softball, which the court deemed a “contact sport.” Accordingly, by playing softball, the plaintiff assumed the risks inherent to the sport, including home plate collisions.

So what should we take from this opinion? First, according to our Supreme Court, recreational softball, like professional football, is a contact sport. Second, keeping a softball game “non-competitive” will not affect the legal analysis. Third, catchers are open targets, so long as you keep your conduct within the “scope of the game.”

We doubt the average softball player is considering his legal duty as he barrels towards a catcher blocking the plate. But just in case he was wondering, he can take solace in the fact hat the Court respects the game. Unlike the NFL, the Court is not going to penalize a player for conduct natural to the game itself. Even if home plate collisions violated some over-protective rec league softball rule, the Court noted that rule violations themselves are inherent to the sport.

The Yamaha Motor Corporation has caught a lot of flack recently over the lack of doors on its two-seater Rhino all-terrain vehicle. After it made some safety modifications to the Rhino in 2007, Yamaha was hit with a number of lawsuits – 175 in California alone. The national media caught wind of the lawsuits and came down pretty harsh. In response, Yamaha created its own website, TruthAboutRhino.com, and a Rally Around Rhino widget to garner support for the ATV. We don’t the know effectiveness of Yamaha’s use of the Interwebs, but something must have worked. Yamaha prevailed in all but one of the lawsuits. As to the one that got away? Well, that one was recently reversed by an appellate court.

Earlier this month, in Yamaha Motor Corp. U.S.A. v. McTaggart, No. A11A1022 (Ga. Ct. App. Nov. 15, 2011), the Georgia Court of Appeals reversed and remanded the case to the trial court with direction to enter judgment granting Yamaha’s motion for a directed verdict. In 2008, the plaintiff filed suit against Yamaha after he flipped his Rhino and suffered a severe laceration to his leg. The complaint alleged that his injuries were caused by a latent stability defect and the absence of doors. (The stability defect claims were abandoned four weeks before trial). Following a trial, the jury found that the Rhino’s defective design proximately caused the plaintiff’s injuries and returned a verdict in his favor for $317,002.

On appeal, Yamaha argued that the undisputed evidence at trial demanded a finding that the plaintiff assumed the risk of his injuries. At trial, the plaintiff testified that the Rhino was useful to him “because it had no door.” When he purchased the ATV, he declined the dealership’s offer to install an after-market door because he preferred the open access. Further, the plaintiff admitted that he had seen and understood the significance of keeping his legs inside the Rhino during a rollover. When the salesman reviewed the warning stickers on the Rhino, the plaintiff admittedly laughed and said, “Well, man, common sense would tell you not to do that, right?” Looking at the evidence as a whole, the Court found that the plaintiff had significant experience operating the Rhino and was clearly aware of the potential danger of injury to his limbs.

Yamaha may champion this decision on its Rhino website, but it should be noted that this decision tells us little, if anything, about the alleged defective design of the Rhino. That issue was not on appeal. We can see how some may view doors as a necessary component of a vehicle. But let’s get real. We aren’t talking about driving a DeLorean down the freeway. We are talking about a Rhino – an all-terrain vehicle. Ever heard of Jeep? No doors necessary.

Regardless of the potential design defect, the Court of Appeals got this one right. Buying a product specifically because it doesn’t have doors, then suing for the same reason seems illogical. The plaintiff admittedly was fully aware of the risks – always a good sign when trying to formulate an assumption of risk defense.

Recently, in Kirkland v. Emhart Glass S.A., — F. Supp. 2d —-, No. C10-5125BHS, 2011 WL 1435454 (W.D. Wash. April 14, 2011), the District Court for the Western District of Washington denied a manufacturer’s motion for summary judgment on an injured glass worker’s claim under the Washington Product Liability Act (“WPLA”). The plaintiff, injured by molten glass while operating an Individual Section Machine, alleged that the machine lacked adequate warnings and failed to protect workers from injury resulting from “contact with red hot bottles on the conveyor while performing mold changes.” The manufacturer’s defense? The plaintiff’s injuries were not proximately caused by its failure to warn because the dangers of molten glass were open and obvious. Sounds reasonable. After all, in order for glass to be “molten,” it must be exceedingly hot. We doubt the plaintiff was wearing his winter coat while operating the machine.

However, the Court wasn’t buying it.

Sometimes the difference between winning and losing an argument isn’t the facts, but rather how the argument is framed. In opposition to the manufacturer’s motion, the plaintiff argued that its failure to warn claim was based on the manufacturer’s failure to provide adequate instructions to the plant operator

[a]bout how to reduce or eliminate the known hazard of workers coming into contact with extremely hot bottles on the conveyor when working over the conveyor, despite expressly acknowledging the need for such instructions in [their] Technical Report regarding Individual Section machines. (emphasis added)

See what they did there? They incorporated the open and obvious nature of the molten glass right into their argument. I’ll take your “open and obvious” and raise you one “failure to provide instructions.” The dangers remain open and obvious, but apparently, it’s the manufacturer’s fault for not providing a remedy. To support his argument, the plaintiff produced evidence that the plant operator installed a protective shield following the plaintiff’s accident. (Don’t worry, the Ninth Circuit previously held Federal Rule of Evidence 407 only applies to a defendant‘s remedial measures).

The manufacturer was right. The dangers of molten glass are open and obvious. However, sometimes being right just isn’t enough.